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7 - The Narrowing of the Administrative Law Imagination

from Part II - Confronting the Origin Myths of Administrative Law

Published online by Cambridge University Press:  02 October 2020

Elizabeth Fisher
Affiliation:
University of Oxford
Sidney A. Shapiro
Affiliation:
Wake Forest University, North Carolina
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Summary

In 1975, a young administrative law scholar, Richard Stewart, published “The Reformation of American Administrative Law” in the Harvard Law Review.1 His 150-page narrative is a grand portrayal of a dramatic shift in the nature of administrative law. According to this narrative, the traditional understanding of administrative law, which Stewart called the “transmission belt model,”2 was “essentially a negative instrument for checking government power,”3 aimed at the management of “the problem of discretion.”4 Harkening back to the idea that the New Dealers saw expertise as a solution for this discretion, Stewart allowed that expertise “could plausibly by advocated as a solution to the problem of discretion,” but only if the “agency’s goal could be realized through the knowledge that comes from specialized experience,”5 which Stewart doubted was possible.6

Type
Chapter
Information
Administrative Competence
Reimagining Administrative Law
, pp. 181 - 214
Publisher: Cambridge University Press
Print publication year: 2020

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